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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO. 192 OF 2024

Dr. Manju Percy Jilla

Age : 62 years, Occ : Medical Practitioner,

R/o Central Naka Road, Aurangabad. … Petitioner

Versus

The State of Maharashtra

Through Ambad Police Station,

District Jalna. … Respondent

WITH

CRIMINAL REVISION APPLICATION NO. 200 OF 2024

Dr. Gurupreet d/o Shobhasing Sandhu

Age 49 years, Occ : Service,

R/o : Plot No. 8, Limbewadi,

Sindhi Colony, Mitra Nagar,

Aurangabad. … Petitioner

Versus

1.The State of Maharashtra

2.Shashikant s/o Namdeo Jadhav,

Age : 35 years, Occ : ____,

R/o : Sindhkhed Raja,

District : Buldhana. … Respondents

…..

Mr. Nilesh S. Ghanekar, Advocate for the Revision Petitioner in

Criminal Revision Application No. 192 of 2024.

Mr. Amol N. Kakade, Advocate for the Revision Petitioner in Criminal

Revision Application No. 200 of 2024.

Mr. B. V. Virdhe, APP for the Respondent-State in Both Criminal

Revision Applications.

….. 2026:BHC-AUG:9533

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CORAM :ABHAY S. WAGHWASE, J.

Reserved on : 25.02.2026

Pronounced on: 07.03.2026

JUDGMENT :

1.Both Revisionists, who are medical practitioners, are

dissatisfied by the order dated 29.06.2024 passed by learned

Additional Sessions Judge, Ambad on applications Exhibits 15 and 25,

which were pressed into service for discharge by invoking Section 227

of Cr.P.C. i.e. to discharge them from offence under Section 304 r/w

34 of IPC.

2.Both Revisionists-original accused are chargesheeted by Ambad

Police Station for above offence and for the sake of ready reference,

the sum and substance of the prosecution case as reflected in para 15

of the charge sheet, is as under :

“15.Brief Facts of the Case (add separate sheet if

necessary) :

“On 18.03.2014, when Megha Tarde, r/o Kingaon,

was admitted at the Jilla Hospital, Aurangabad by the

informant and witnesses due to complaint of abdominal

pain, both the accused persons mentioned in column no.

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10 of the chargesheet performed telescopic laparoscopy

operation, due to which she suffered intestinal injury

causing hole/perforation and infection and she died on

22.03.2014 at 2.45 while under treatment. Both accused

had not taken due care while operating the deceased and

in spite of knowing that she had suffered hole/injury to her

intestine, they discharges her and thus, both accused being

responsible for her death, they are chargesheeted for

offence under Section 304 r/w 34 of IPC.”

3.The above accusations emanate primarily from the FIR lodged

by one Shashikant Namdeo Jadhav, r/o Sindkhed Raja, District

Buldhana, wherein he alleged that, his sister Meghabai was being

treated for infertility at Jilla Hospital, Aurangabad. According to him,

on 18.03.2014, his sister underwent Laparoscopic surgery and also

got discharged and he took his sister to his place for rest. On

19.03.2014, his sister made complaint of abdominal pain and blotting

and was therefore taken to a local doctor at Sindhkhed Raja, namely

Dr. Bansod, who conducted sonography and based on its report,

informed that there is accumulation of water-like fluid after surgery

and he further suggested she to be taken back to the Jilla Hospital

where she was operated. Accordingly, all relatives took her to the Jilla

Hospital run by Revisionist Dr. Manju Jilla and made her known the

reports of Dr. Bansod and requested to take emergent steps for

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obtaining x-ray. According to him, apart from failing to take emergent

steps, there was negligence on the part of said lady doctor to refer his

sister to expert surgeon, as a result of which, condition of his sister

started deteriorating. On 21.03.2014, her condition deteriorated

further and thereafter she was referred to Dr. Warudkar and Dr.

Kandi. However, according to him, for proper treatment, he shifted

his sister to Max Hospital at 11.30 p.m. and on 22.03.2014 at 9.00

a.m., surgery was performed at Max Hospital, however, around 2.45

p.m., his sister expired. Hence, he lodged above report, holding above

both Revisionists responsible and sought action.

On above report, Ambad police carried out investigation and on

its completion, chargesheeted both accused for offence under Section

304 r/w 34 of IPC and they were sought to be tried vide Sessions Case

No. 100 of 2021 before the Court of Additional Sessions Judge,

Ambad.

Both medical practitioners preferred Exhibits 15 and 25 seeking

discharge under Section 227 of Cr.P.C. on various grounds. However,

by order dated 29.06.2024, learned Additional Sessions Judge turned

down above both applications. Hence, instant revisions by invoking

Section 397 of Cr.P.C.

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Criminal Revision Application No. 192 of 2024

4.Learned counsel Mr. Ghanekar would, at the outset, highlight

the qualifications, achievements and length of medical practice of the

Revision Petitioner and would submit that, she is a most experienced

medical practitioner in this region. Pleading innocence, he would

point out that there is no denial that sister of informant was being

treated for infertility at her hospital. But according to him, Revision

Petitioner had not performed any medical procedure or any surgery

on deceased lady patient. That, merely because she runs the above

hospital where deceased lady got admitted and took treatment, she

too is impleaded as an accused.

5.He pointed out that the medical record maintained by the

hospital shows that deceased lady was diagnosed of history of Portal

Cavernoma but was taking treatment for infertility and was desirous

of conception. That, the lady patient was admitted in the hospital on

18.03.2014 and after admission, formalities like pre-operative

evaluation, required pathological tests, obtaining informed concent,

were completed and only on above evaluation and finding her fit to

face surgery, Dr. Gurupreet Sandhu (Petitioner in Criminal Revision

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Application No. 200 of 2024) conducted laparoscopy. Its clinical notes

are maintained in the hospital. He pointed out that, lady patient was

also discharged on the same day and taken home by informant as her

general condition was stable.

6.He further pointed out that, subsequently, while at home, lady

patient complained of abdominal pain and on consulting local Doctor,

they again came on 19.03.2014 and all necessary evaluation was

again done to find the cause of abdominal pain. That, there was no

negligence or deliberate delay in evaluating the patient. According to

learned counsel, from the FIR at the instance of brother itself, it is

clear that they, on their own accord, decided to shift deceased to Max

Hospital even when two experts were consulted and medication was

prescribed. That, lady patient was admitted at Max Hospital. Doctor

of said hospital was offered with necessary medical history and

medical case papers maintained by the hospital of Revisionist

regarding surgery dated 18.03.2014. That, second surgery was also

performed at Max Hospital and not at her hospital and as such, it his

submission that, it is unreasonable to attribute negligence and death

to the Revision Petitioner who had no role in either treating or

conducting any operative procedure. That, she had also not

participated or assisted during the laparoscopy. According to him,

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admittedly informant’s sister died at Max Hospital, that too after two

to three days of discharge from Petitioner’s hospital, and therefore her

implication is patently absurd.

7.He further pointed out that, here, cause of death is reported to

be “Peritonitis in post-operative case of Exploratory Laparotomy for

intestinal perforation following Laparoscopy”. According to him, what

this medical phrase means is, some perforation and internal bleeding,

but it is attributable to various reasons and not mere laparoscopy or

surgical procedure.

8.According to him, as required, committee has evaluated entire

case papers, medical papers and had tendered report regarding above

cause of death and opined that, “the second surgery, i.e. Exploratory

Laparotomy, was conducted five days after the first surgery, due to

which she suffered infection. Had the patient been operated at the

earliest with Exploratory Laparotomy with Colostomy, her death

could have been avoided”. He pointed out that, above committee

comprise of three medical experts and their opinion is not about any

negligence, leave aside gross negligence. That, these experts had

merely rendered opinion that surgery ought to have been performed

at the earliest, however, he added that since being readmitted to the

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hospital from 19.03.2014, all proper evaluation procedure was

undertaken to understand the cause of abdominal pain. That, experts

were also engaged in the said procedure and there was no delay

whatsoever. Rather, he reiterated that, lady patient was shifted from

their hospital and taken to Max Hospital where Exploratory

Laparoscopy was done and the lady patient died thereafter and, as

such, implication of petitioner is unwarranted. He also invited

attention of this Court to the report of Government Medical College

and Hospital, Aurangabad dated 26.10.2025 wherein it has been

opined that, “… during operation at Max Hospital, perforation to the

intestine was observed. Cause of perforation cannot be specifically

stated as to whether it was during surgery at Jilla Hospital, or due to

pre existing intermittent fever, or due to patient’s intestinal cancer.

However, second time when patient was admitted at Jilla Hospital,

there was delay in taking decision of her re-operation. This delay may

be ‘doctor’s error of judgment’, but there was no gross negligence”.

9.Learned counsel sought reliance on various judgments of the

Hon’ble Apex Court and High Court on discharge as well as medical

negligence, and primarily focused on the judgment of Hon’ble Apex

Court in the case of Jacob Mathew. The citations relied and referred

are as under :

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1.Jacob Mathew v. State of Punjab and Others,

MANU/SC/0457/2005.

2.Jayshree Ujwal Ingole v. State of Maharashtra and

Others, MANU/SC/0386/2017.

3.Annely Dlima v. Police Inspector, Agacaim Police

Station [Cri. WP No. 160 of 2018 decided on

27.02.2020 by the Division Bench of this Court at

Panaji].

4.P. Kanakadurgamma v. State, By Inspector of Police

[Cri. WP 3741 of 2005 decided on 12.07.2006 by the

High Court of Andhra Pradesh].

5.Dr. Pradeep s/o Sadashiv Wankhede v. The State of

Maharashtra and Another [Cri. Application (ALP) No.

503 of 2016 with connected matter decided on

06.07.2017 by the High Court of Bombay at Nagpur].

6.Ms. Ins. Malhotra v. Dr. A. Kriplani and Others [Civil

Appeal No. 1386 of 2001 decided by the Hon’ble Apex

Court on 24.03.2009.

7.Mrudla Suresh Deshpande v. The State of

Maharashtrai MANU/MH/0224/2001.

Criminal Revision Application No. 200 of 2024

10.Learned counsel Mr. Amol Kakade would adopt the above

submissions in support of relief urged for Revision Petitioner Dr.

Gurupreet Sandhu.

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11.In answer to above, learned APP would strongly resist the relief

and justify the order of trial court. According to him, there is

sufficient material/grounds for both, framing charge as well as

conducting trial. He also seeks reliance on the judgment of this Court

at Nagpur dated 17.12.2024 in Criminal Revision Application No. 210

of 2024 i.e. Dr. Pravashankar Sunilkumar Mishra v. State of

Maharashtra, reported in 2024 NCBHC-Nagpur 13869.

12.Before touching the merits, it would be profitable to give the

brief account of revisionary powers of this Court under Section 397 of

Cr.P.C. Though there are catena of judgments, the landmark

judgment of Amit Kapoor v. Ramesh Chander and another (2012) 9

SCC 460 is relied and the relevant observations therein are borrowed

and quoted as under :

“12. Section 397 of the Code vests the court with the

power to call for and examine the records of an inferior

court for the purposes of satisfying itself as to the legality

and regularity of any proceedings or order made in a case.

The object of this provision is to set right a patent defect or

an error of jurisdiction or law. There has to be a well -

founded error and it may not be appropriate for the court

to scrutinise the orders, which upon the face of it bears a

token of careful consideration and appear to be in

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accordance with law. If one looks into the various

judgments of this Court, it emerges that the revisional

jurisdiction can be invoked where the decisions under

challenge are grossly erroneous, there is no compliance

with the provisions of law, the finding recorded is based on

no evidence, material evidence is ignored or judicial

discretion is exercised arbitrarily or perversely. These are

not exhaustive classes, but are merely indicative. Each case

would have to be determined on its own merits”.

13.Here, both revision petitioners are seeking discharge under

Section 227 of Cr.P.C. Therefore, it would also be desirable to give

brief account of the judicial precedent on discharge and a few

landmark judgments which still hold the field, are as under :

In Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC

135, the Supreme Court observed that, in exercising powers under

Section 227 of the Criminal Procedure Code, 1973, the settled

position of law is that the Judge, while considering the question of

framing charge under the said Section, has the undoubted power to

sift and weigh the evidence for the limited purpose of finding out

whether or not a prima facie case against the accused has been made

out and whether the materials placed before the Court disclose grave

suspicion against the accused which has not been properly explained

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to the Court. Only in such a case, the Court will be fully justified in

framing charge and proceed with the trial. On the other hand, if the

Judge is satisfied that the evidence produced before the Court gives

rise to some grave suspicion, then the Judge will be fully justified in

discharging the accused.

In P. Vijayan v. State of Kerala, (2010) 2 SCC 135, the Supreme

Court has held that the Judge is not a mere post office to frame

charge, but the Judge should exercise his judicial mind and discretion

to determine whether a case for trial has been made out by

prosecution. It was further clarified that the Judge should be satisfied

that the evidence produced by the prosecution before the Court

discloses grave suspicion that the accused has committed the crime.

The Supreme Court has also laid down the following principles :

1. If two views are possible and one of them gives rise to

suspicion only as distinguished from grave suspicion, the

Trial Judge would be empowered to discharge the accused.

2. The Trial Judge is not a mere Post Office to frame the

charge at the instance of the prosecution.

3. The Judge has to merely sift the evidence in order to find

out whether or not there is sufficient ground for proceeding.

Evidence would consist of the statements recorded by the

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Police or the documents produced before the Court. It is to

be noted here that the Judge has to merely sift the evidence

on record and not go in depth of it in order to decide an

application for discharge.

4. If the evidence, which the prosecutor proposes to adduce to

prove the guilt of the accused, even if fully accepted before

it is challenged in cross - examination or rebutted by the

defence evidence, if any, 'cannot show that the accused

committed offence, then, there will be no sufficient ground

for proceeding with the trial.

5. It is open to the accused to explain away the materials

giving rise to the grave suspicion.

6. The Court has to consider the broad probabilities, the total

effort of the evidence and the documents produced before

the Court, any basic infirmities appearing in the case and so

on. This, however, would not entitle the Court to make a

roving enquiry into the pros and cons.

7. At the time of framing the charges, the probative value of

the material on record cannot be gone into, and the material

brought on record by the prosecution, has to be accepted as

true.

8. There must exist some materials for entertaining the strong

suspicion which can form the basis for drawing up a charge

and refusing to discharge the accused.

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In Amit Kapoor (supra), in paragraphs 17 and 19, the

Hon’ble Supreme Court has observed as under :

“Framing of a charge is an exercise of jurisdiction by the trial

court in terms of Section 228 CrPC, unless the accused is

discharged under Section 227 CrPC. Under both Sections 227

and 228 CrPC, the court is required to consider the “record of

the case” and the documents submitted therewith and, after

hearing the parties, may either discharge the accused or

where it appears to the court and in its opinion there is

ground for presuming that the accused has committed an

offence, it shall frame the charge. Once the facts and

ingredients of the section concerned exists, then the court

would be right in presuming that there is ground to proceed

against the accused and frame the charge accordingly. This

presumption is not a presumption of law as such. The

satisfaction of the court in relation to the existence of

constituents of an offence and the facts leading to that

offence is a sine qua non for exercise of such jurisdiction. It

may even be weaker than a prima facie case. (para 17)

At the initial stage of framing of a charge, the court is

concerned not with proof but with a strong suspicion that the

accused has committed an offence, which, if put to trial,

could prove him guilty. All that the court has to see is that the

material on record and the facts would be compatible with

the innocence of the accused or not. The final test of guilt is

not to be applied at that stage.”

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In State of Karnataka v. M. R. Hiremath, (2019) 7 SCC 515, the

Supreme Court has observed that, at the state of considering an

application for discharge, the Court must proceed on the assumption

that the material which has been brought on record by the

prosecution should be true and the Court should evaluate the material

in order to determine whether the facts emerging from the material,

taken on its face value discloses the existence of the ingredients

necessary to constitute the offence.

In another case of State of Tamil Nadu v. N. Suresh Rajan,

(2014) 11 SCC 709, adverting to the earlier decisions on the subject

of discharge, the Supreme Court observed that at the stage of

discharge, the probative value of the materials has to be gone into

and the Court is not expected to go deep into the matter. Whereas,

what is needed to be considered is whether there is a ground for

convicting the accused has been made out. To put it differently, if the

court thinks that the accused might have committed the offence on

the basis of the materials on record on its probative value, it can

frame the charge but for the conviction of the accused, the court

should come to the conclusion that the accused has committed the

offence. The court further observed that the law does not permit a

mini trial at the stage of discharge.

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14.Keeping in mind the above settled legal position, on sifting the

chargesheet with limited purpose, the chronology of events that

emerges from medical papers is as under :

•21.01.2014 – Deceased Megha Dnyaneshwar Tarde, aged 23

years, was being treated for infertility at Jilla Hospital,

Aurangabad. As per the history recorded, the deceased was a

diagnosed case of Extra Hepatic Portal Vein Obstruction

(EHPVO) since 2009.

•18.03.2014 – Deceased underwent a laparoscopic surgical

procedure conducted by Dr Gurupreet Sandhu at Jilla

Hospital. She was later on shifted to bed and further

discharged on the same day.

•19.03.2014 – Post operation, on the next day at Sindhkhed

Raja, District Buldhana, deceased complained of abdominal

pain. Medical papers record the presence of the abdominal

fluid. Therefore, the deceased was re-admitted at about 7:00

p.m. at the Jilla Hospital.

•20.03.2014 – At around 9:00 a.m., deceased was seen by Dr.

Gurupreet Sandhu and her condition was mentioned as fair,

she was afebrile.

•21.03.2014 – At around 4 p.m., patient (now deceased)

complained of pain in the abdomen. As per the second

opinion of Dr Nusrat Farooqi, the patient was advised CT scan

of the abdomen which revealed evidence of peritonitis. The

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deceased was considered for Exploratory Laparotomy and was

referred for immediate surgery to Government Medical

College and Hospital, Aurangabad. On the request of the

patient, she was referred to the Max Super Speciality Hospital

by Dr Manju Jilla, who spoke with Dr, Navin Kasliwal,

surgeon at Max Super Speciality Hospital, where she was

examined at 11:00 p.m.

•22.03.2014 - The Exploratory Laparotomy was performed for

intestinal perforation at 9:00 a.m. However, at 3:00 p.m., the

patient died at Max Super Specialty Hospital.

15.Thus, on study of medical papers, admission of deceased Megha

for Laparoscopic surgery in the hospital of Revision Petitioner Dr. Jilla

is of 18.03.2014 and she underwent the same. Medical papers show

that on the same day, she was also discharged and taken home by

informant brother. Again she was brought back and re-admitted on

account of complaint of abdominal pain on 19.03.2014 and on

21.03.2014 she was advised to be taken to the Government Medical

Hospital, but on decision of informant and family members, she was

taken to Max Super Speciality Hospital and admitted there on the

night of 21.03.2014. In this Max Super Speciality Hospital, she

underwent “Exploratory Laparotomy” for intestinal perforation at

09.00 a.m. in the morning of 22.03.2014 by the Doctors of the Max

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Super Speciality Hospital and unfortunately in the afternoon around

3.00 p.m., Megha succumbed. Inquest panchanama also shows that,

death has taken place in Max Super Speciality Hospital.

16.Charge sheet shows that, initially AD was registered on

16.04.2014, however, FIR at the instance of brother is apparently

lodged on 17.04.2015 i.e. after more than a period of one year.

During AD inquiry, statements of husband, in-laws and other relatives

were recorded on 18.04.2014 and they all in unison stated that they

had no complaint against anyone for the death of Megha and it was

due to abdominal pain. Such statements are already forming part of

chargesheet.

Subsequently, on receipt of report from brother after a year or

so, crime is registered and investigation seems to have been

undertaken by police on accusation of commission of offence under

Section 304 r/w 34 of IPC. Section 304 IPC, for ready reference, is

reproduced as under :

“304. Punishment for culpable homicide not amounting

to murder.—

Whoever commits culpable homicide not

amounting to murder shall be punished with

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imprisonment for life, or imprisonment of either

description for a term which may extend to ten years,

and shall also be liable to fine, if the act by which the

death is caused is done with the intention of causing

death, or of causing such bodily injury as is likely to

cause death;

or with imprisonment of either description for a

term which may extend to ten years, or with fine, or

with both, if the act is done with the knowledge that it is

likely to cause death, but without any intention to cause

death, or to cause such bodily injury as is likely to cause

death.”

It is fairly settled position that for proving offence of 304 of IPC

it is incumbent upon prosecution to establish that firstly, accused

caused death, and secondly it was done with intention of causing

death or bodily injury or with knowledge that the act is likely to cause

death.

The Hon’ble Apex Court in the case of Anbazhagan v. State

Represented by Inspector of Police (2024) 20 SCC OnLine SC , lucidly

summed up the principles to be considered while dealing with case

involving Section 304 IPC which encompasses Part I as well as Part II.

Explaining the difference between both, it has been highlighted that,

the first Part of Section 304 comes into play “when there is guilty

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intention”, whereas second Part would apply when there is no such

intention but there is “guilty knowledge”. Essence of mens rea is also

highlighted for attracting the above offence.

17.As regards to qualification of both revision petitioners is

concerned, it is emerging that each of the petitioners possess

following educational qualification :

Dr. Manju Jilla - M.D. (OBST. & GYNAE.)

Dr. Gurumeet Kaur - M.B.B.S.

D.G.O.C.P.S.

The Aurangabad Municipal Corporation has issued Certificate

of Registration to Jilla Hospital since 24.07.1985.

18.Thus, there is no dispute that, the hospital run by Dr. Manju

Jilla is an approved and recognized maternity hospital wherein

Revision Petitioner Dr. Gurupreet Sandhu is engaged as a Doctor and

from their academic acquisitions, they both seem to be qualified and

experienced medical practitioners.

19.On carefully going through the papers, as regards to Revision

Petitioner Dr. Manju Jilla is concerned, there is nothing to show that

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since admission of deceased Megha, she herself conducted any

procedure over deceased and it is so apparent from the clinical notes

which are part of charge sheet. Procedure of Laparoscopy is shown to

be performed by Dr. Gurupreet Sandhu and hospital case papers, i.e.

pre and post operation, are at her instance. But again, after

conducting Laparoscopy on 18.03.2014, informant had taken

discharge of his sister and had been to his native and on next day,

when there was complaint of abdominal pain, there, local doctor

seems to have been consulted, who opined formation of fluid and re-

directed them to the hospital of Dr. Jilla. Admittedly, since

19.03.2014 to 21.03.2014, lady patient was in the Jilla Hospital and

treated conservatively. Informant brother has merely attributed delay

in obtaining x-ray and conducting necessary tests. He alleges that

necessary steps were not taken for referring his sister to an expert.

Papers which are part of chargesheet show that, expert by name

Dr. Gopanpallikar initially examined Megha and advised color

Doppler. On 21.03.2014 one surgeon Dr. Nusrat Farooqui was called

for second opinion, who advised CT scan and on receipt of report of

CT scan, decision about Exploratory Laparotomy surgery was taken

and for want of post operation ICU backup, it seems to have been

decided to refer the lady patient for immediate surgery to

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Government Medical College and Hospital, Aurangabad. Accordingly,

a referral note was also prepared on 21.03.2015 addressed to Dr.

Warudkar, Head of the Department of Surgery at said Govt. Medical

College and Hospital. However, it seems that for proper treatment,

informant/brother of deceased and relatives seems to have in stead

shifted her to Max Super Speciality Hospital.

Papers show that, deceased was admitted in Max Super

Speciality Hospital on 21.03.2014 at around 11.00 p.m., wherein all

clinical notes of previous diagnosis, treatment and details of

laparoscopy done five days back were noted by Dr. Ritesh Sony, also a

surgeon. Treatment seems to have immediately commenced upon

admission and necessary pathological tests were being got done.

Thereafter, patient seems to have been seen by Dr. Navin Kasliwal

and call of undertaking Exploratory Laparotomy seems to have been

taken by him too, and the same seems to have been accordingly done

at 09.00 a.m. on 22.03.2014. After said procedure, notes show that,

patient did not recover. However, Max Hospital has maintained

papers of consent prior to Exploratory Laparoscopy and relatives have

signed over consent forms which show that they were made aware of

the prognosis of the patient.

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20.Thus, what is emerging from above discussion is that, after

discharge from Petitioner’s hospital, second procedure was done at

Max Hospital. Consequently, material in the charge sheet suggests

involvement of another hospital after discharge from Petitioner’s

hospital. As regards to involvement of Dr. Manju Jilla is concerned,

there is nothing in the charge sheet for participating in Laparoscopy

done on 18.03.2014. Apparently, it was done by Dr. Gurupreet

Sandhu, but she too seems to be well qualified and experienced

surgeon and after her procedure, lady patient was discharged and

taken at native by her brother.

21.Here, postmortem findings suggest death due to “Paritonitis in

post-operative case of Exploratory Laparotomy for intestinal

perforation following Laparoscopy” which, in common language,

means perforation/bleeding to intestine. Prima facie, there is no

evidence of bleeding since discharge from Jilla Hospital dated

18.03.2014. Local doctor has, on sonography, recorded a finding

about accumulation of fluid/water. As stated above, second procedure

is shown to be done at Max Hospital, after which deceased reportedly

died. Consequently, there is no material to directly connect both

Petitioners with the death of Megha. Even Expert Committee’s

opinion does not show any “gross” negligence in conducting

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Laparoscopic procedure or that said procedure itself had led to

Paritonitis.

22.At this juncture, it would be fruitful to refer to the judgment of

Hon’ble Apex Court in the case of Jacob Mathew (supra), which is

invariably leaned upon by Courts while dealing with cases of medical

negligence, wherein in paragraph 48, the Hon’ble Apex Court has

summed up its conclusions on several issues of law on medical

negligence, which are borrowed and reproduced as under :

“(1) Negligence is the breach of a duty caused by omission to do

something which a reasonable man guided by those

considerations which ordinarily regulate the conduct of

human affairs would do, or doing something which a

prudent and reasonable man would not do. The definition

of negligence as given in Law of Torts, Ratanlal & Dhirajlal

(edited by Justice G.P. Singh), referred to hereinabove,

holds good. Negligence becomes actionable on account of

injury resulting from the act or omission amounting to

negligence attributable to the person sued. The essential

components of negligence are three: 'duty', 'breach' and

'resulting damage'.

(2) Negligence in the context of medical profession necessarily

calls for a treatment with a difference. To infer rashness or

negligence on the part of a professional, in particular a

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doctor, additional considerations apply. A case of

occupational negligence is different from one of

professional negligence. A simple lack of care, an error of

judgment or an accident, is not proof of negligence on the

part of a medical professional. So long as a doctor follows a

practice acceptable to the medical profession of that day,

he cannot be held liable for negligence merely because a

better alternative course or method of treatment was also

available or simply because a more skilled doctor would

not have chosen to follow or resort to that practice or

procedure which the accused followed. When it comes to

the failure of taking precautions, what has to be seen is

whether those precautions were taken which the ordinary

experience of men has found to be sufficient; a failure to

use special or extraordinary precautions which might have

prevented the particular happening cannot be the standard

for judging the alleged negligence. So also, the standard of

care, while assessing the practice as adopted, is judged in

the light of knowledge available at the time of the incident,

and not at the date of trial. Similarly, when the charge of

negligence arises out of failure to use some particular

equipment, the charge would fall if the equipment was not

generally available at that particular time (that is, the time

of the incident) at which it is suggested it should have been

used.

(3) A professional may be held liable for negligence on one of

the two findings: either he was not possessed of the

requisite skill which he professed to have possessed, or, he

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did not exercise, with reasonable competence in the given

case, the skill which he did possess. The standard to be

applied for judging, whether the person charged has been

negligent or not, would be that of an ordinary competent

person exercising ordinary skill in that profession. It is not

possible for every professional to possess the highest level

of expertise or skills in that branch which he practices. A

highly skilled professional may be possessed of better

qualities, but that cannot be made the basis or the

yardstick for judging the performance of the professional

proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down

in Bolam s case, 1957 1 WLR 582, 586 holds good in its

applicability in India.

(5) The jurisprudential concept of negligence differs in civil

and criminal law. What may be negligence in civil law may

not necessarily be negligence in criminal law. For

negligence to amount to an offence, the element of mens

rea must be shown to exist. For an act to amount to

criminal negligence, the degree of negligence should be

much higher i.e. gross or of a very high degree. Negligence

which is neither gross nor of a higher degree may provide a

ground for action in civil law but cannot form the basis for

prosecution.

(6) The word 'gross' has not been used in Section 304A of IPC,

yet it is settled that in criminal law, negligence or

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recklessness, to be so held, must be of such a high degree

as to be 'gross'. The expression 'rash or negligent act' as

occurring in Section 304A of the IPC has to be read as

qualified by the word 'grossly'.

(7) To prosecute a medical professional for negligence under

criminal law, it must be shown that the accused did

something or failed to do something which, in the given

facts and circumstances, no medical professional in his

ordinary senses and prudence would have done or failed to

do. The hazard taken by the accused doctor should be of

such a nature that the injury which resulted was most

likely imminent.

(8) Res ipsa loquitur is only a rule of evidence and operates in

the domain of civil law specially in cases of torts and helps

in determining the onus of proof in actions relating to

negligence. It cannot be pressed in service for determining

per se the liability for negligence within the domain of

criminal law. Res ipsa loquitur has, if at all, a limited

application in trial on a charge of criminal negligence."

Finally, in paragraph 50 of Jacob Mathew (supra), the Hon’ble

Apex Court has prescribed guidelines in matters of prosecution of

medical professionals. In this paragraph, the Hon'ble Apex Court has

noted that, cases of doctors (surgeons and physicians) being subjected

to criminal prosecution are on rise. Sometimes such prosecutions are

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filed by private complainants and sometimes by the police on an FIR

being lodged and cognizance taken. The investigating officer and the

private complainant cannot always be supposed to have knowledge of

medical science so as to determine whether the act of the accused

medical professional amounts to rash or negligent act within the

domain of criminal law under Section 304A of IPC. The criminal

process once initiated subjects the medical professional to serious

embarrassment and sometimes harassment. He has to seek bail to

escape arrest, which may or may not be granted to him. At the end he

may be exonerated by acquittal or discharge but the loss which he has

suffered in his reputation cannot be compensated by any standards.

From the conclusions recorded by the Hon'ble Apex Court in

Jacob Mathew (supra), it is clear that negligence in the context of

medical profession necessarily calls for a treatment with a difference.

To infer rashness or negligence on the part of a professional, in

particular a doctor, additional considerations come into play. A case

of occupational negligence is distinct from one of professional

negligence. A mere lack of care or an error of judgment or an

accident, is not a proof of negligence on the part of a medical

professional. (emphasis supplied) So long as a doctor follows a

practice acceptable to the medical profession of that day, he cannot

CriRevn-192-2024+

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be held liable for negligence merely because a better alternative

course or method of treatment was also available or simply because a

more skilled doctor would not have chosen to follow or resort to that

practice or procedure which the accused followed.

23.In the light of above settled position and on reverting to the

case in hand and on revisiting the expert committee’s opinion, it is

emerging that, both reports do not specifically or pin-pointedly

attribute death due to any “gross” negligence in surgery conducted on

18.03.2014. Since admission of deceased in the hospital of Revision

Petitioner on 19.03.2014, no procedure of whatever nature was done

in the said hospital. Allegations are of not heeding to the request of

informant to conduct x-ray examination. Therefore, taking above

material into consideration, apparently there does not seem to be a

case of medical negligence, leave aside “gross” negligence.

24.To sum up, no role whatsoever is shown to be played by

Revision Petitioner Dr. Manju Jilla in conducting any procedure like

Laparoscopy. Her participation is not shown at the time of said

procedure. As regards to Revision Petitioner Dr. Gurupreet Sandhu is

concerned, after said procedure conducted by her, patient was

discharged and initially taken home, then brought back on

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19.03.2014, but again thereafter, there is no procedure at her hands.

Rather, second procedure is done at distinct hospital with which

neither of the Petitioners have any concern. Apparently, death has

occurred after second procedure at Max Hospital.

25.Even papers show that, informant brother has set law into

motion almost after a year or so. As stated above, in earlier

statements during AD inquiry, these very persons, i.e. husband, in-

laws and other relatives, did not blame either of the Petitioners for

the death. Rather, they attributed it to abdominal pain. Surprisingly,

one year thereafter, in subsequent statements on lodgment of FIR,

they are attributing negligence to both Revision Petitioners. However,

in view of the above observations of the Hon’ble Apex Court in Jacob

Mathew (supra) and also bearing in mind the essential ingredients for

attracting Section 304 IPC which are reflected in the case of

Anbazhagan (supra), here, none of the ingredients are shown to be

existing in the entire chargesheet. In the totality of above discussed

facts and circumstances, it is a fit case for discharge. Hence, both

Revision Petitioners succeed. Accordingly, following order is passed :

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ORDER

I.Both the Criminal Revision Applications are allowed.

II.The common order dated 29.06.2024 passed by Additional

Sessions Judge, Ambad below Exhibits 15 and 25 in Sessions Case

No. 100 of 2021, is hereby quashed and set aside.

III.The Applications Exhibits 15 and 25 filed in Sessions Case No.

100 of 2021 stand allowed. Both the Revision Petitioners stand

discharged from offence under Section 304 r/w 34 of IPC in

Sessions Case No. 100 of 2021 (Crime No. 77 of 2015 registered

at Ambad Police Station, District Jalna).

IV.The Criminal Revision Applications are accordingly disposed off.

[ABHAY S. WAGHWASE, J.]

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